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July 27, 2009

"Rethinking the Federal Role in State Criminal Justice"

The title of this post is the title of this Essay from Professors Joe Hoffmann and Nancy King that was recently published in the NYU Law Review.  I blogged about this piece when it first showed up on SSRN, but I think the important piece merits another mention now that it is in print.  Here is the abstract:

This Essay argues that federal habeas review of state criminal cases squanders resources that the federal government should be using to help states reform their systems of defense representation.  A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners who have been convicted of noncapital crimes and offers no realistic hope of relief for those who do reach federal court.  As a means of correcting or deterring constitutional error in noncapital cases, habeas is failing and cannot be fixed.  Drawing upon these findings as well as the Supreme Court’s most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments except for certain claims of actual innocence, claims based on retroactively applicable new rules, or death sentences.  The federal government should leave the review of all other state criminal judgments to the state courts and invest, instead, in a new federal initiative to encourage improved state defense services.  This approach can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.

July 27, 2009 at 01:10 PM | Permalink


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snap reaction, based on abstract: fear this is a well-meaning academic think piece with predictably disastrous real-world implications when it is used as cover and justification for rolling back of (concedely non-optimal but better than nothing) federal habeas protections, while the vague and probably (if done right) hugely expensive "initiative to encourage improved state defense services" left on the cutting-room floor.

Posted by: anon | Jul 28, 2009 1:12:32 PM

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